How insufficient resources have resulted in a failed legal system in Malawi


March 31, 2021 | posted by | 5sc

By Andrea Vizsolyi

As with many developing countries, Malawi functions under a common-law legal system imposed during colonialism. The rights of accused persons enshrined in the Constitution, such as the right to counsel, the right to a trial within a reasonable time, and the right to be presumed innocent, mirror those contained in international human rights instruments and give a false sense of institutionalised justice. In reality, the system in Malawi struggles to function at almost every stage of the criminal justice process, due to an extreme lack of resources.

Investigations often fail to achieve the bare minimum, such as gathering evidence which is not exclusively hearsay, or exhausting all leads to ensure the right person is arrested. Sometimes suspects or important witnesses simply cannot be found. And there is no reliable infrastructure for tracing people. For instance, while fingerprints may be taken, it is unclear the extent to which they are databased. Investigators largely rely on information supplied to them verbally. In these instances, investigators may arrest those they can find, and that they reasonably believe to be responsible. Because of the difficulty of tracing all people who might shed light on a particular crime, suspects or witnesses, crucial to the investigation, are frequently not spoken to at all. Even where the suspect may have circumstantial evidence against them, it is rare that the evidence will reach the standard of beyond a reasonable doubt – police torture often results in false confessions in Malawi, DNA testing and CCTV footage are extremely rare in cases where they could be useful, and much of the evidence gathered is in the form of hearsay.    

Suspects are often arrested in the midst of investigations, meaning they are forced to remain in custody even where there is insufficient evidence to charge them; they may not even know what they are being accused of at the time of arrest. Police make these arrests in the hope of eliciting evidence from the suspects while in custody. In one particularly egregious example, six people were arrested in relation to a missing person. The offence was later categorised as “alleged murder”, which is not a crime in Malawi. These six people were held in police detention for between three and six months, with no evidence that they had been involved in the disappearance, nor any evidence that the alleged victim was actually dead. There was not even evidence to ground an assault claim against the accused persons. None of the suspects were questioned in relation to a murder, meaning they were not informed of the charge levelled against them. Eight months after the disappearance, the “victim” was discovered alive. In his statement, he did not imply the disappearance had anything to do with any of the six accused persons. These six persons remained in custody until the matter was brought to the attention of the Directorate of Public Prosecutions (DPP) through a bail application on their behalf.  

There is also severe underfunding to protect vulnerable groups in Malawi, such as children and victims of domestic or sexual violence. The issue of protection of these vulnerable groups extends not only to those who are victims, but those who are accused of crimes as well. For instance, the Child Care, Protection and Justice Act, 2010 prohibits accused children from being detained prior to a finding against them, unless it is successfully argued by the DPP that there is a need for detention. Even where it is ruled that the child should be detained, they should be held at a “safety home”.

In reality, there are sometimes children accused of serious offences being detained prior to their trial for years, without approval from the DPP, and being held in correctional facilities for youths (called reformatory centres), rather than safety homes. Safety homes do not exist in Malawi. This means that children, who are presumed innocent, are being forced to remain in facilities meant only for those who have been found responsible for crimes. Children accused of crimes need a social inquiry report by a probation officer before they can go to trial, as well as a capacity assessment to see whether they were capable of understanding and being responsible for the crime, if they were under the age of 14 at the time of the offence. These reports are frequently not completed, which may be due to the lack of probation officers in the country, a lack of training of police officers to refer children to these requisite resources, or both.

One child was arrested for homicide at 10 years old, never received a social inquiry report or a capacity assessment, and proceeded to be held in the reformatory centre without his case being committed to court for almost three years, before being released on bail. Unless a capacity assessment is conducted almost simultaneously to the time of the offence, it would be impossible to assess a child’s capacity years later. At the stage that this child was released from the reformatory centre, there was no chance that he would be convicted at trial, as it would be impossible for the court to determine that he had capacity three years prior.

Those who are the victims or witnesses of crimes also face a distressing reality; child witnesses are often asked to testify “in chambers” with the accused person only one seat away from them. This is done under the guise of protection of privacy of the child, yet it contributes to the traumatisation of the child witness. It is done this way as there is not a possibility, in some of the Magistrate Courts, to facilitate testimony through CCTV, due again to lack of resources.

A severe shortage of available lawyers (on both prosecution and defence sides) causes difficulties in fulfilling the right to counsel of those most vulnerable. As of now, free legal counsel is only guaranteed to those charged with homicide. The majority of people detained and charged are accused of petty offences and are therefore ineligible for counsel. They may not understand their rights, meaning they could end up detained for a significant amount of time without moving their cases forward. The official language of the court is English, but not all Malawians speak English fluently, meaning many self-represented accused persons have to try to understand legal terms in a language they are not fluent in – another legacy of colonialism that is felt by the most marginalised in Malawi’s society. Even in homicide cases where representation is available, because of the dearth in lawyers, the same lawyer may represent all accused persons, even where their evidence incriminates one another or creates another conflict of interest. A lack of lawyers also means that vulnerable victims and witnesses have to be cross-examined by the self-represented accused persons. In some Commonwealth jurisdictions, the government will appoint a lawyer to lessen the trauma of the victim in having to face the accused person in this manner; unfortunately, in Malawi, this has not become common practice, even in extreme cases.

The resource issues in Malawi’s criminal justice system start even before an investigation is opened – they begin with the lack of accredited law schools and the minuscule number of lawyers in the country. The systemic issues throughout show that the colonial-imposed institutions placed here fail to function in a context where there is a lack of resources and underfunding; colonialism has left an enduring legacy of poverty and discrimination against those with less means. Criminal justice institutions are only as good as their resources allow them to be. Despite the limitations on the system, Malawi recently issued a landmark judicial decision, overturning a mishandled election, the second of two African countries to do so. This decision shows the potential for Malawi to be a leader in the legal sphere in Southern Africa, and globally. But there is first a need for Malawi to focus on developing their justice system, whether it is to add more resources so that the system already in place can function properly, or to consider approaches which might better serve the Malawi public, and those accused of crimes.


Interview with Patricia Gannon


March 24, 2021 | posted by | 5sc

We're kicking off a series, profiling Irish and Northern Irish lawyers who have worked abroad or are working abroad. First up: Irish Solicitor, Patricia Gannon from Boyle in County Roscommon, who originally worked as a practitioner and eventually as founder/partner in the largest law firm in the Balkans. She is now an entrepreneur and social connector, running Gannon Advisory – an holistic strategic advisory business.

IRLI: What is your background/training?

Patricia Gannon: I studied law in Trinity and think it was certainly one of the greatest life changing periods of my life. I had been really attracted to the liberal culture which was there at the time and benefitted from the small class (there were 75 in my year) and being taught by leading lawyers such as Mary Robinson, Mary Mc Aleese and Kadar Asmal, all of whom played an inspirational role in shaping me. I worked at the Irish Centre for European Law with Mary and Nick Robinson at the time and our aim was to educate and train Irish lawyers on the impact of European Law on their practice. It was clear by then that a European adventure beckoned.

I trained at Gerrard, Scanlon & O Brien, a Dublin firm, which no longer exists, and they tolerated my forays into all things European and networked. I was president of ELSA Ireland (the European Law Students Association) at the time so did my fair share of budget travel and mixing with aspirational young lawyers from all over Europe who believed in creating ‘a just world where there is respect for human dignity and cultural diversity’. Thirty years later, I still hold on to that motto as a guiding philosophy for what I do.

Why did you become interested in legal work?

I don’t come from a legal family but I do remember as a teenager enjoying the idea of having a job which was always changing and one had to engage intellectually, problem solve and be a good communicator. I also liked the independence of the practitioner because no matter where one works, you and you alone are the lawyer before your Bar Association and professional indemnity insurance provider!!

Looking back now, I realise I was always attracted to the law as a tool protecting rights and as a framework within which we regulate our inter-personal and business relations. Knowing the rules of engagement seemed a sensible thing to do.

Having seen the work of an Irish law firm and a Munich based law firm, I then wanted to explore the European institutions where I spent time at the European Commission, in then DGXI, Environment. This was an interesting opportunity to see first-hand the interplay between policy and law.

At that time, I also served on the International Board of ELSA in Brussels, and running an international student organisation was fantastic early experience in people management, fund raising, programme development, public speaking, publishing etc. It was also hugely confidence building and that then led to the next stage of my life which was life in the Balkans!

You were a partner in Karanovic Nikolic, the biggest law firm in the western Balkans, what did your work and role entail?

Through my work at ELSA, I met a young Yugoslav lawyer and we married and that brought me to Belgrade in 1994. A very different time and place to anything I had ever known. With war, bombing and sanctions, every day was a roller coaster event. But that drama too ended, and in 1995, we established the firm and hit the ground running as the World Bank and many foreign investors flooded the market to rebuild the economy there.

The next 20 years were a flurry of activity, massive growth and the largest transactions. From the Belgrade office, we grew to cover the whole of former Yugoslavia, today with nearly 200 people in 7 markets. I really enjoyed building up the business, inspiring and training younger lawyers and bringing people from former Yugoslavia back together as part of a healing process. There was a clear need for people to reconcile and create something powerful. It took some time and effort for the prejudices to heal but our clients were very happy to have a team work with them in all the smaller Republics which emerged after the collapse of Yugoslavia.

Can you tell us some of your professional experiences that have left quite a mark on you personally?

I just feel I was incredibly lucky to have had such a varied career to date and it certainly has left me more open minded and tolerant today. I have learned from brilliant lawyers and then adapted to new environments easily. I have enjoyed the challenge of each phase of my life and at my core I am a connector - of people and ideas.

I have a broad vision and really enjoy joining the dots to create an organisation, law firm, platform..

How important is the rule of law, in your opinion?

Rule of Law is key to everything we do everywhere.

Why did you decide to work abroad?

I always loved to travel (I still do) and experience new cultural experiences and it seemed a natural thing to do when I finished college. Somehow, Ireland at the time seemed small, too rigid and less full of possibility for me. My career started with Europe and then expanded to the Balkans and now I divide my time between Belgrade, Berlin, Dublin and Spain. With Covid, obviously, I have been in situ like everyone else, but have made the most of my time as I develop my new advisory business and projects. I am never bored!

What was your work with the International Bar Association?

I have been active at the IBA for nearly 20 years and for me it was initially about presenting my firm internationally, building a network and business. It was also about learning more about what is going on within certain practice areas globally. I truly enjoy being part of a global network and am as curious today as I was when I left Trinity.

Through the years, I was asked to take more and more leadership positions within the IBA and most recently have been the Chair of the European Forum of the IBA, which has over 8,000 European lawyers in it. We organise all the events that take place within Europe and I have been behind initiatives such as the Start Up lawyers conference and the European Automotive and Mobility conference, as we try to address emerging industries and practice areas for younger lawyers.

I am also involved in Gender and Diversity initiatives as I believe we have to work so much harder to be able to actually incorporate the diverse views at the table into what we do. Sitting at the table is a start… but it’s not enough to have an impact yet.

You now run Gannon Advisory, what does that work entail?

I exited my firm last September and now run my boutique advisory business which today mostly works with law firms on strategy and management. Having built it before, I am well positioned to assist others doing it now. I love the freedom this gives me as I am entirely my own boss.

I am also working on an exciting new technology project around the profession, so all will be revealed soon, I hope.

What drives you to do what you do?

I feel very blessed with huge energy and every day is an opportunity for me to engage with different people. My personal style is very pragmatic and perhaps a little too direct, but I try to distil issues down to their essence and help clients come up with strategic solutions.

What sort of an impact would you like to make?

At this stage of my career, I am really happy to be able to fully choose what I spend my time on. I have made it a priority to work on supporting sustainability projects and women in business on the business side and still work on connecting lawyers with each other globally to support them in building their practice and overall experience.

Your advice to young people entering the legal profession?

Law, like everything else, will become one sector in the global technology platform, and the vast data that we produce will need to be understood and deployed, ideally for a better service to clients.

Young lawyers will need to be very tech savvy as it will become one of their tools in the same way as the law itself is a tool to regulate the rights and obligations of inter personal relations.

I hope that young lawyers will not lose the broader human implications of the law along the way.

 

 


Overcrowding, COVID-19 and Malnutrition in Malawi’s Prisons: An Assessment of Malawi’s Human Rights Obligations as Regards the Right to Health


March 16, 2021 | posted by | 5sc

By Éilis Brennan

When assessing the detention conditions of incarcerated persons, the Convention Against Torture and the International Covenant on Civil and Political Rights are typically invoked. As a result, States’ obligations under the International Covenant on Economic, Social and Cultural Rights (the “ICESCR”) are often overlooked. The ICESCR can prove useful for this purpose however, given that prison conditions might not meet a standard amounting to torture under the Convention Against Torture, but may amount to a breach of a prisoner’s economic, social and cultural rights as outlined in the ICESCR. The indivisibility of Economic, Social and Cultural Rights as well as Civil and Political Rights is a key principle of international human rights law which further militates in favour of advocating for the right to health for incarcerated persons.

 

The CESCR

Article 25.1 of the Universal Declaration of Human Rights affirms: “Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services”.[1] The ICESCR is a multilateral treaty which came into force on 3 January 1976. It broadly sets out to commit its parties to granting economic, social and cultural rights. The right to health is laid out in Article 12 as the right of every individual to the “enjoyment of the highest attainable standard of physical and mental health.” This is the most comprehensive article on the right to health in international human rights law.

All States parties are obliged to submit regular reports to the Committee on Economic, Social and Cultural Rights (“CESCR”) on how the rights are being implemented. The CESCR examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations”. In terms of cooperation, Malawi’s initial report to the CESCR has been overdue since 1996. This lack of reporting has contributed to a problem which is well known - the mechanisms of various UN human rights bodies are only ever as good as the State Parties’ reporting procedures are.[2] The CESCR is enforced through a progressive realization of rights as opposed to placing an immediate obligation on States. Given that the situation in Malawi’s prisons is not improving - in fact it could be said it is deteriorating - is in, and of itself, a strong indication that Malawi is not meeting its obligations under the ICESCR.

In addition to the reporting procedure, the Optional Protocol to the ICESCR, which entered into force on 5th May 2013, and has been ratified by 24 State Parties, provides the Committee competence to receive and consider communications from individuals claiming that their rights under the ICESCR have been violated. Malawi has not yet ratified the Protocol.

Malawi has a poor record in terms of protecting the right to health of its prison population, both male and female. The problem of overcrowding and poor sanitation is not a new one, and despite long term advocacy efforts by human rights organisations, attempts to achieve structural reform have not been hugely successful. Malawi’s Supreme Court in 2009 found it unconstitutional to keep inmates in overcrowded and poorly ventilated prisons, stating:

“... packing inmates in an overcrowded cell with poor ventilation with little or no room to sit or lie down with dignity, but to be arranged like sardines violates basic human dignity and amounts to inhuman and degrading treatment.”[3]

COVID-19 and access to adequate nutrition

By September 2020, 26 staff and 408 prisoners in Malawi had tested positive for COVID-19. By this stage only 2,656 prisoners had been tested and so the true number is likely much higher. There is also a lack of personal protective equipment, and a lack of soap and water. The prison system is reliant on support from non-governmental organisations for these supplies.

Prisons are also operating at 260% capacity. Practically speaking, this means prisons are overcrowded to the extent that prisoners are often left without access to a bed of their own, adequate hygiene facilities or ventilation. Prisoners are often reliant on donations from faith-based institutions, or family members to access adequate nutrition. Concerns have been raised by various stakeholders and human rights organisations that there is a distinct lack of nutrition for prisoners, which results in inmates being more susceptible to infectious diseases, including COVID-19. Inmates typically receive one meal a day of beans and nsima, which lacks sufficient nutrition. If inmates are required to be in court, they often miss the opportunity to eat in prison and as a result are left without food for periods of 24 hours and more. Inmates relying heavily on relatives and friends to bring food to prisons to supplement their meals is also a problem, particularly at the moment given the pattern of lockdowns which prevent family members from visiting prisons.[4]

In denying prisoners adequate food, Malawi is in violation of not only the Malawian Constitution but also international human rights law to protect the lives and wellbeing of inmates, as well as their obligations under the ICESCR.[5] The impact of malnutrition and consistent underfeeding cannot be underestimated. In the joint stakeholder submission to the UN Human Rights Committee by IRLI and other stakeholders, an example was given of a 26-year-old male who, as a result of poor prison nutrition was diagnosed with Pellagra, Psychosis and Pervicasores which resulted in his death.  

Various non-government agencies and human rights organisations including IRLI, along with Malawi’s own judiciary have advocated for clemency to be given to certain prisoners throughout this crisis, in order to decongest the prison system. Malawi’s former President Arthur Peter Mutharika  called for a list of prisoners with a view to processing their release, however progress has been slow, with activists stating the number of pardoned prisoners remains stubbornly low.

Possible solutions

The global organisation Dignity has noted that the approach of the Malawian justice system to certain breaches of human rights is part of a wider way of thinking by certain countries that the first response to criminal activity should be the deprivation of liberty and fundamental human rights principles. This is a deep rooted and complex issue, which requires a more fundamental change in the way countries view justice and criminal prosecution, with an approach from international organisations that is less top-down and instead incorporates internal change from within a State Party. Dignity has also noted that given 124 countries worldwide have reported overcrowding in prisons, this is not simply an issue in the Global South.[6]

Given that Malawi has not yet submitted its first report to the CESCR, it is therefore reliant on various stakeholders to get information on the status of the right to health in Malawi. The CESCR has stated that this failure to report can make it impossible to effectively monitor the implementation of the rights set forth in the ICESCR. The CESCR has, as a result, sought to coordinate its work with that of other bodies to the greatest extent possible and to draw as widely as possible on available expertise in the field of competence. The CESCR has provided opportunities for non-governmental organisations to submit information to it. The CESCR could endeavour to be more proactive in encouraging State Parties’ like Malawi to submit their reports on time, and to ratify the Optional Protocol. State Parties’, such as Malawi need to be stimulated to promote and implement the ICESCR, to achieve a meaningful realisation of the right to health. This can be done not only through the work of the CESCR, but through the important work being done by non-governmental organisations and the efforts of the Malawian criminal justice system.

 

Footnotes:

[1] CESCR General Comment No.14

[2] Socio-economic and cultural rights and wrongs after armed conflict

[3] Prisons in a Pandemic, Kate Gould

[4] Prisons in a Pandemic, Kate Gould

[5] LOIPR IRLI

[6] Dignity 2020:13


The Impact of COVID-19 on Children in Low Income Countries: Resource Deficits and Institutional Gaps in Child Diversion Programmes and Other Services for Children in Conflict with the Law in Malawi


March 13, 2021 | posted by | 5sc

By Lindiwe Sibande

The COVID-19 pandemic has been an immense shock to societies and economies globally. In more recent months, as a second more severe wave has affected more low income countries, pre-existing strains on resources and gaps in institutional capacity have further been exacerbated. As is usually the case with such strains and gaps, it has become increasingly evident that those most vulnerable continue to be disproportionately affected and disadvantaged. Although current evidence suggests that children have not borne the brunt of the direct health implications of COVID-19, it is still clear that the pandemic has impacted their well-being in many other ways[1]. This article discusses the impact that COVID-19 has had on children in Malawi and further illustrates the additional impact faced by children in conflict with the law.

The Wider Impact of COVID-19 on Children in Malawi

As the first COVID-19 cases were officially registered in the country in April 2020, Malawi underwent a period of government-mandated COVID-19 restrictions. Among other regulations that were passed, schools were closed for a period roughly spanning 6 months, from March 2020 to September 2020. In response to mounting concerns of potential increases in child marriages and teen pregnancies during this period, the Ministry of Gender, Community Development and Social Welfare conducted a rapid assessment study on the two matters. The study concluded that there was evidence to suggest an increase in child marriages and teenage pregnancies during this period of school closures[2]. The key drivers identified were “dominant cultures of the country, religious beliefs and a lack of economic and social alternatives for young people.”[3] The effects of closure of schools and lack of socio-economic opportunities arguably amplified a pre-existing problem. Furthermore, the longer and more frequently school closures happen (schools were closed once again from January 2021 to February 2021 due to the second wave and this was proceeded by a strike from public school teachers), the higher the likelihood that children, especially girls, will not return to school once they re-open and will drop out altogether, further increasing the probability of child marriage as well as teen pregnancy. Studies in countries such as Sierra Leone have for instance noted that “adolescent girls out of school are more than two times more likely to start childbearing than those who are in school.”[4] This is also likely in countries such as Malawi where distance and online learning is not a possibility for the vast majority of schools. Similar patterns can also be noted for children in conflict with the law. 

The Impact of COVID-19 on Child Diversion and Other Services for Children in Conflict with the Law

Alternative justice options for children in conflict with the law are both extremely scarce and underfunded in the country. There are currently two reformatory centers run by the Ministry of Gender; the first is Mpemba, for children aged 10-14 and the second, Chirwa, for children aged 15-18, both situated in the south of the country. In general, cases in Malawi tend to end up as criminal matters with individuals being arrested before there is need and although children cannot legally be imprisoned, where there is some focus on children in conflict with the law, this is mostly centered around some level of detention, whether this is being kept in police cells or other facilities referred to as ‘juvenile detention or reformatory centers’, which largely follow a prison-like format.

Alternative resources for children who have come in conflict with the law particularly at pre-arrest and pre-detention stages are mainly available through non-profit organizations such as youth centered vocational programmes and other youth empowerment initiatives. Irish Rule of Laws’ Mwai Wosinthika programme in Lilongwe (central region) is a 12-session, pre-trial diversion programme facilitated in collaboration with the Malawi Ministry of Gender and offers support and guidance for young people who have come into conflict with the law. Mwai Wosinthika is currently one of the few diversion programmes in the country that follow a non-detention route (Byounique Trust in Zomba, south of the country, is another). With normal intake on Mwai Wosinthika usually around 15-25 children per programme and current intake limited to 10-12 due to COVID restrictions, this leaves the resource space for children in conflict with law more wanting than usual. Disruptions in normal operation of programmes due to COVID19 have further widened this gap.

As COVID restrictions have had a significant impact on families’ income, the likelihood of more children coming into conflict with the law also increases, as most crimes tend to be crimes of poverty such as petty theft. In IRLI’s recent reporting periods, it was noted that, during closure of schools, there has also been a slight increase in behavioural regression in participants and previous graduates from the diversion programme. Another challenge faced by the pandemic is that in comparison to middle-upper income economies that have had the ability to move to virtual spaces in light of COVID19 in order to continue undertaking the child diversion programmes[5], this is not a possibility in Malawi. IRLI has had to postpone all group sessions, while continuing to work the programme participants through home counselling visits conducted by Child Protection Officers from the Ministry of Gender. This provides additional counselling and much needed one-on-one sessions with children, however this barely scratches the surface of the needs of the children. Understaffing also continues to be a difficulty faced by the Ministry of Gender and with the introduction of shift work due to COVID-19, already overstretched human resources become even more strained. The ability for the children to meet in a group setting and the benefits of these group sessions has also been negatively impacted. The likelihood of children continuing diversion programmes with a school also dwindles, as parents may choose to send their children to relatives or to their home villages due to economic hardships. Furthermore, as individual organisations have also scaled back on group activities, the ability to link children with diverse resources has also been adversely affected. Girls have also been profoundly impacted as these resources may provide facilities that they may not otherwise have had access to, such as educational or sexual reproductive health related resources. This is compounded by the earlier challenges facing young girls due to the risk of early marriage and teen pregnancy. 

Conclusion

There is a clear deficit of resources and alternative justice options available for children in conflict with the law in Malawi, with mostly individualised non-profit institutions that cater to the needs of vulnerable children in diverse ways barely filling this gap. In addition to institutions being affected by COVID-19 restrictions, increasing pressure on the economy also means less funding for these already underfunded institutions, which is intensified by the increased demand for services due to the pandemic. Despite legislation providing for child diversion and more recently adult diversion[6], the lack of alternative justice options in the country is palpable with focus remaining on some level of detention. The reformative benefits of alternative justice options are quite clear; it would therefore be prudent to expand such services but also strengthen already existing platforms and networks whilst mitigating the risks of COVID-19.

 

Footnotes:

1. policy_brief_on_covid_impact_on_children_16_april_2020.pdf (un.org)

2. A Rapid Assessment Study of Teenage Pregnancies and Child Marriages During COVID19 in Malawi, Ministry of Gender, Community Development and Social Welfare, September 2020

3. See above

4. policy_brief_on_covid_impact_on_children_16_april_2020.pdf (un.org)

5. Child Diversion Programme Continues to Treat Clients Despite COVID-19 - Jamaica Information Service (jis.gov.jm)

6. No. 22 of 2010 Child Care, Protection and Justice Act 1, PART III-CHILDREN SUSPECTED TO HAVE COMMITTED OFFENCES

 


Judicial Responses to Covid-19 in Malawi


March 10, 2021 | posted by | 5sc

By Susie Kiely

Introduction

The African continent does not lend itself to generalisations as easily as its American or European counterparts; this applies equally to the effects of Covid-19. Culturally the continent is extremely diverse; the urban/rural divide varies per country, the types of governments range from democracies to autocracies; some countries have very high GDPs, while others have some of the lowest in the world. The Ebola outbreak affected only West African countries very seriously; Southern Africa for example has no residual infrastructure from this pandemic to tap into. All of these factors mean that a diverse range of policies have been taken, or not taken, to curb the spread of the virus, with varying degrees of success. And, though, the African continent has done much better in many respects than Europe and America in their response to Covid-19, in order to ascertain the true extent and effects of Covid-19 on the continent, experts, and wider society, will have to look at the individual countries involved.

Malawi

Malawi is a largely peaceful, democratic country. It recently flexed its democratic muscles, and gained international recognition, by becoming only the second African nation to annul a general election in May 2019. This was the on the basis of a Constitutional Court decision which found irregularities to have occurred during the election. When retaken, the subsequent election ousted the exiting political establishment and ushered in a coalition of opposition politicians. This all, in fact, happened at a pivotal point in the pandemic: July 2020.

Geographically Malawi is very small; it is only about a third bigger than the island of Ireland, though much longer and thinner. Its population however is three times that of Ireland, at 19 million (expected to double by 2038).

Malawi is also one of the poorest countries in the world, and has been for decades. In Malawi, about 80% of people live below the poverty line ($1.9 a day), 80% of the population live in rural areas and again about 80% of the population work in the informal sector i.e., do not have a regular salary and need to attend their place of work every day to earn enough money to eat that day.

The waves of Covid-19

The first case of Covid-19 in Malawi was recorded on 2 April 2020. On the 8th April the Government, under the former president Peter Mutharika, introduced the Public Health (Corona Virus and Covid-19, Prevention, Containment and Management) rules, 2020 (“the Covid-19 Regulations”) under the Public Health Act; these included a 21-day European style lockdown, to start on 9 May. This caused widespread uproar and many demonstrations took place over the following week, not only due to the fear of the untold damage such a measure would cause to Malawian society, but also because the renewed elections were due to take place in June, and many felt this lockdown was merely an attempt by the ruling party to postpone the elections. On 17 April 2020, the Human Rights Defenders Coalition of Malawi made an emergency application to the High Court seeking leave to apply for judicial review of the decision to grant the lockdown, and an interlocutory injunction to stop it from coming into effect. The application was made on the basis that the lockdown would cause widespread and disproportionate harm to Malawian society, including starvation and the ruination of vital businesses, and that further consultation was needed. The High Court granted leave to apply for judicial review, and also the interim injunction, on the same day. The lockdown was eventually ruled unconstitutional in September 2020.

On the 7th August 2020 the new Government revised the Covid-19 Regulations and the lockdown was removed. Various restrictions to daily life were made, and new offences were created. S20(3) made it an offence to not wear a mask in a public place, the penalty for which was a 10,000 Malawian kwacha (MK) fine (about €12). Restaurants and other food outlets had their hours limited to between 6am and 9pm (eventually reduced to 8pm), and S20(2) made it an offence to operate a premises or hold an activity in breach of the regulations, the penalty for which was appreciably larger, with both a 100,000MK fine (about €107) and a three-month prison sentence.

Though originally borders were shut and the above restrictions were enforced to a certain degree, these measures relaxed in or around October 2020. The predominant reason for this was because the virus really did not seem to be affecting Malawi to the same extent as many other countries around the world; between the beginning of the pandemic and 30 December 2020, 6,500 cases were officially registered with 189 deaths. Though reliable data is not readily available, educated guesses have hypothesised that the youthful nature of Malawi’s population (over 50% of the population are under the age of 18) may have had an impact on the spread of the virus. Another factor may have been Malawi’s largely rural, and relatively outdoor, social structure; the homes of millions of people in rural Malawi do not have windows. Malawi is also not very connected to other parts of the world, such as Europe and the US. Whether the true extent and nature of the virus in Malawi will ever become clear is unknown. Furthermore, other factors, such as very limited testing capacity, may, and more than likely have, skewed numbers.

However, upon the advent of the South African strain in January 2021, which flowed into Malawi as a result of Christmas travel, cases began to spike and fear of the virus gripped the country again. As a result, the authorities started to actively enforce the Regulations.

Fines in Malawi

The payment, or non-payment, of fines is a perennial issue in Malawi. The average Malawian cannot afford a 10,000mwk fine, let alone a 100,000mwk fine. Unlike in other jurisdictions, where fines prove an effective method of deterring and punishing an offender, without depriving them of their liberty or interning them in a prison, a fine in Malawi is very rarely practicable.

Frequently what results from the imposition of a fine is an indefinite amount of time spent in a police cell until the person’s relatives come up with the money to pay it. This money is then frequently pocketed by the police. If a person is sent to prison for default of payment, the warrant committing the person frequently expires without renewal and again the person is held indefinitely. Non-custodial sentences in Malawi are in general very difficult to enforce; prison sentences are much more tangible and thus far more commonly used. Malawian prisons however, currently operate at about 240% capacity; their conditions have been ruled cruel, inhuman and degrading treatment by the Malawian Supreme Court.

It is within this context, where magistrates are already struggling to strike a balance between enforcement, practicality and dire prison conditions, that the Covid-19 offences have been added. The virus itself of course adds another dimension to the issue, the fact that time spent in either a prison cell or a prison could very likely increase a person’s exposure to the virus.

Practicalities of enforcement

There has been no recognition by Government of the practical risks of enforcing these offences, nor instruction provided as to best practice. As a result, magistrates have been operating inconsistently. Though the offence of not wearing a mask does not stipulate a default custodial sentence, magistrates are still at liberty to apply one under the Malawian Penal Code. If the magistrate is liberally minded, Covid-19 conscious, or just more practical, they will conduct a means assessment of the person and impose either an appropriate fine, or simply let the person off with a caution. IRLI has spoken with various magistrates who recognise the danger of imposing a custodial sentence on a person, and are actively seeking advice from the High Court as to best practice.

However, as noted above, many magistrates, highly aware and frustrated with the impracticality of fines, prefer to opt for custodial sentences as a deterrent to breaching Covid-19 regulations. Though there is little data available to indicate the exact amount of people being sent to prison as a result of non-payment of these Covid-19 fines, various instances have been reported in the media.

Furthermore, though there have been some measures undertaken to try to decongest the prisons, there has been no limitation of arrests. In the capital Lilongwe where we primarily operate, IRLI has noted the cells at the main police station have been over capacity for many weeks. In sum, there is certainly no extant systemic policy that emphasises the importance of avoiding custodial sentences at present, and people continue to be regularly committed to prison, or left in overcrowded police cells.

These regulations and arrests will also disproportionately affect the poorer and more vulnerable populations of Malawi, who depend on informal vending and trading as a means to earn an income. These are also the people who are also more likely to end up with a custodial sentence as they are not able to pay a fine.

Conclusion

The enforcement of Covid-19 regulations has proven a global issue. It is particularly difficult in the context of a country where the large majority of the population cannot afford fines.

The future for Malawi remains precarious, the South African strain is virulent; the number of cases has quadrupled since December, as have the number of deaths (though finally the daily rate appears to be dropping), and wealthy countries are monopolising vaccines. Further, like many other countries, it may not necessarily be the virus itself that causes the most ill effects, but its indirect consequences. Malawi is, for example, still greatly afflicted with anachronistic diseases such as HIV and Malaria, for which there is as yet no viable vaccines. How Covid-19 affects access to these important treatments remains to be seen.

Practical sociocultural, educative and incentivising strategies are what is needed to tackle the Covid-19 pandemic nationally, not, though popular the world over, the transfer of the burden to the blunt instrument of criminal law, which often proves ineffective and dangerous, and disproportionally disadvantages the most vulnerable of society. The Global North must also consider its responsibility to the developing world, particularly to those people most vulnerable to the virus. Once the politicisation of the vaccine race dies down, it is very soon going to have sit with the true consequences of its actions, and they are going to last for many years to come.


Chikondi Mandala


March 07, 2021 | posted by | 5sc

Interview with Chikondi Mandala on International Women's Day

29 year-old Chikondi Mandala is an Assistant Registrar at the High Court of Malawi. In her early twenties, she became the youngest magistrate in Malawi’s history. Today, on International Women's Day, we’re shining a light on Chikondi and the work she does.

IRLI: What is your job?

Chikondi Mandala: I am a Judicial Officer responsible for adjudication. In my current capacity, I exercise the jurisdiction of a High Court Judge in chambers and fulfill administration tasks as an Assistant to the Registrar.

What made you interested in the work you are doing? Did it have anything to do with your upbringing?

I joined the Judiciary after a personal experience where burglars broke into our family home in the dead of night, stole property and left us with injuries. One of the assailants was apprehended and delivered to the police station where he was released without any documentation being processed. To this day, there is no record of his arrest at that police station. Having gone through these experiences, I was motivated to become an actor in the justice system, having had a first-hand experience with crime, as a victim, so that I may deliver good quality public service and to be the public servant that was not available to me.

What area of expertise are you involved in?

I am currently attached to the Civil Division of the High Court. I also conduct volunteer work with the Women Judges Association of Malawi whose goal is to enhance access to justice for women and children; and the Gender and Justice Unit that focuses on legal empowerment as one of the most powerful catalysts of gender equality and social justice. My research interests are women and gender, law reform and development, and the interaction between law and the societies it serves.

How important is your work to you? And why?

This work is very important to me as I believe that law does not exist in a vacuum. The implementation of law and policy ought to consider the societies with which it interacts. Law should be placed in its social context.

Can you tell us about your work with the IRLI?

I have worked with the IRLI in various roles. I have been trained under various IRLI programmes, mainly on topics in the criminal justice realm. I have also trained fellow Judicial Officers on the Prevention against Domestic Violence Act, Self Defence and Intimate Partner Violence, as well as training paralegals under the IRLI’s training programme on Bail Guidelines.

What is the situation in Malawi for women? Can women’s rights in the country be strengthened?

The Malawian Constitution contains principles of national policy, the first of which is gender equality. Through this principle, the State is mandated to achieve gender equality by ensuring the full participation of women in all spheres of Malawian society on the basis of equal opportunities with men; the implementation of the principles of non-discrimination; and the implementation of policies to address social issues such as domestic violence, security of the person, lack of maternity benefits, economic exploitation and rights to property.

One notable change to the Constitution has been that the age of a child has been raised from 15 to 18. On 14 February 2017, the Constitutional Amendment Act No. 36 was passed by Malawi’s National Assembly amending the Constitution to state that 18 years should be the minimum age of marriage. Prior to this amendment, the Marriage, Divorce and Family Relations Act (2015) had set the minimum age for marriage at eighteen years old. The Constitution is therefore evolving and meeting new challenges as they arise.

The Malawian Courts have been instrumental in upholding various rights and declaring some State acts as unconstitutional. 2020 particularly saw numerous constitutional challenges including, the denouncement of rape, and extortion by members of the Malawi Police Service. In a September 2016 determination, the High Court ruled that arresting prostitutes/sex workers was discriminatory and aimed at embarrassing the arrested women. Nineteen women labelled prostitutes/sex workers were arrested during a raid at a rest house. Upon review, the Court held that section 146 of the Penal Code that criminalises ‘living off the earnings of prostitution’ does not target sex workers themselves but those who exploit them.

Despite the wins that Malawian women have experienced, there is still room for improvement.

Do you believe that women have equal rights and opportunities as men?

On paper, women have equal rights and opportunities as men. There are laws and policies in place that declare this, there are implementation plans set out to ensure the equalisation of rights and opportunities. However, there are also socio-economic factors that make the realisation of these rights and opportunities more difficult for women when compared to men.

Women have a triple work burden that consists of productive, reproductive and social responsibilities. Women spend a lot more time attending to household activities than men. Often, this work is unpaid and not recognized as work. The responsibility of women for reproduction of the household (and, by extension, of society) involves the functions of caregiver, cleaner, cook and seamstress, among others, to which can be added, in rural agrarian societies, that of subsistence food producer. These responsibilities severely limit women’s possibilities of fully actualising their rights and seizing opportunities.

The economic participation and opportunity gender gap is the second highest gender gap at an average of 41.9 percent after political participation. In 40 percent of the World Economic Forum’s research countries, women do not have the same access to financial services as men and in 58 percent of the countries assessed, women do not have access to land ownership. Around 70 percent of formal women-owned/led small and medium enterprises (WSMEs) in developing countries are not able to receive financial services from financial institutions. Despite women’s inability to receive financial services, in 127 countries the law does not prohibit discrimination on the basis of gender for access to credit. The global internet user gender gap was at 31% in 2016 in so-called Least Developed Countries (LDCs) as opposed to 12% globally. 57% of developing countries consider education services key for empowering women; and 47% of developing countries identify information and communication technology as a key sector to foster women’s economic development. However, women have a lower rate of mobile phone ownership with 300 million fewer female subscribers with handsets than men. Improving opportunities for women improves not only women’s standard of living, but also their status and bargaining power in the family increase. This is sometimes known as the "power of the purse".

Do you believe that Covid19 has had a disproportionately negative impact on women, both in Malawi and around the world?

All around the world, balancing work and household responsibilities has been identified as an additional barrier for women as they spend twice as much time as men in domestic work. With Covid-19, the distinction between work and the household has been blurred. In addition to household responsibilities, women have the additional role of homeschooling children, working, and taking care of the family that is couped up in the same house every day for days on end. Further, for women in abusive relationships, they are in confined spaces with their abuser for extended periods of time. Prior to Covid, if an intimate partner is employed, their time away from the home was a time of respite for the abused partner. Finally, the burden of caring for loved ones when they are sick and providing essential goods to loved ones during stay-at-home seasons is often placed on women.

Do you believe that the future is bright for Malawian girls and women?

Yes

What professional/personal experience has had a lasting impact on your life and outlook to life?

I joined the Judiciary in 2013 and, at that time, Malawi had both its first female president and its first female Chief Justice in office. Having just left college, it was very encouraging to see women in the highest offices in the Country and in the Judiciary respectively. This gave me the impression that my dreams are valid, and that my dreams are attainable.

If you had any advice to offer to young women, what would it be?

Continue to dream because your dreams are valid. Continue to work hard, persist towards achieving those dreams because they are attainable.

What would you like to remind young women?

There is space for all of us to shine, we might have to create or search for those spaces, but there is enough space for all of us to shine.

 

 

 

 


COVID and Policing in Malawi


March 02, 2021 | posted by | 5sc

By Tyler Holmes

When the novel coronavirus began to spread around the globe, Malawians, feeling their isolation from the world, argued that the virus, not officially in the country until April 2, 2020, was yet another ploy to delay a change in leadership. Due to a court order, a planned April lockdown never happened, elections were held in June, and the virus faded almost immediately after a mask mandate was promulgated in early August.

This year has been different however, with a second wave fuelled by the holiday spread of the South African variant of the disease. Through late February, three times as many official cases have been identified in 2021 as there were in 2020. And police warnings about using force to affect the lockdown have come true in beatings and arrests.

2020

In Malawi, the COVID-19 pandemic was far from the biggest story or concern of 2020. President Arthur Peter Mutharika won the election with only 36.4 percent of the vote in 2014 and appeared to win re-election with only 38.6 percent in 2019. The Tripartite Elections of 2019 were riddled with accusations of fraud, as many tally sheets were amended with correction fluid (Tippex) in the counting process and the Malawi Election Commission (MEC) did little to respond to complaints.

Malawians took to the streets beginning in June 2019, calling for the MEC Chair to resign. The protests were the first sustained demonstrations in almost a decade. In August 2019, the leading opposition candidates—Member of Parliament Lazarus Chakwera and Vice President Saulos Chilima, who earned a combined 55.6 percent of the vote—filed a lawsuit challenging Mutharika’s re-election. On February 3, 2020, after months of trial streamed to the public on the radio, the Constitutional Court ruled in favour of the applicants and ordered a rerun by July 3. In the wake of the ruling, the opposition unified, with Chakwera as their standard bearer.

The overarching need for the election of a majority government drowned out individual causes as well as a virus response. In a survey between May and June 2020, 75 percent of Malawians said the fresh presidential election should be held on July 2 despite the virus, and 67 percent of Malawians worried politicians were using the pandemic to increase their power or enrich themselves (which was February 2021’s leading story).

This clear focus on the presidential election was given further steam when opposition members of parliament and activist groups obtained an injunction against the attempted April lockdown. After all, few Malawians have the capacity to stop going about their daily business. Prevention efforts faded and were largely disregarded in May and June. On June 23, Malawians got the election they so desired.

After the announcement of Chakwera’s election win (59.9 percent to Mutharika’s 39.3 percent), Malawi started to focus on a diverse set of priorities, including preventative measures against the spread of COVID-19. Returnees from South Africa and election rallies had kicked up the virus to the extent that a planned inauguration ceremony on Independence Day never took place. But shortly after a mask mandate was promulgated in early August, the virus seemed to disappear (there were as few as 30 active cases on December 9 and 10).

2021

Turn the page to this year, when the virus took center stage. The uptick in cases began little by little the week before Christmas, but hit in earnest on December 30. In all of 2020, there were 6,583 cases and 189 deaths. In January 2021, there were 17,380 cases and 513 deaths. February saw over 7,143 more cases and 322 more deaths (see Feb 23 data). But in addition to lives, livelihood, and an impact on mental health, response to the virus has taken incalculable dignity from poor Malawians.

On January 10, President Chakwera dusted off regulations not enforced for five months: “We must keep each other safe by obeying guidelines, including early closures of drinking places and restrictions on public gatherings, which many are still violating.” To the president’s credit, he admitted he, too, had been lax. He had to know he was letting the police off their leash, though.

At Lilongwe Model Police Station, where I spent most days before the pandemic and still spend hours each week, mass arrests for violators began on or before January 14 under the holding charge of “endangering lives,” which, on later dates, was just listed as COVID-19. When police failed to find COVID violations, they looked to use another petty offence, as frequent arrests were made for illegal vending, conduct, and idle and disorderly.

In 38 days, 620 people were arrested for COVID-related offences and another 100 for other petty offences in Lilongwe alone. As our friend and colleague Victor Mhango, the executive director of the Centre for Human Rights, Education, Aid and Assistance (CHREAA) put it, these are disproportionately people who cannot afford masks. Arrests have taken place around the country: at Dowa, Kasungu, Limbe (in Blantyre), and Nkhotakota, for example. Street connected children were rounded up, too.

Police said they would use force to make these arrests, and they did. Police mobile service unit officers, the police’s responders to protests and other mass gatherings, enforced the regulations with sticks and similar weapons. Complaints about police brutality came in from a variety of sources, with the Centre for Human Rights and Rehabilitation (CHRR) alleging police beatings, one individual sharing a video of police abuse at the minibus depot in Lilongwe Area 3, and a journalist complaining about similar treatment only about 600 metres from the depot.

There are again signs the virus might be receding, but police activity can threaten that trend. The daily checklist completed at the Lilongwe police station reflects average daily congestion of over 145 people in an eight-cell block for the month, almost 40 people higher than December (and two to three times the averages of April through July). Officers have complained about the situation at other stations, too. Other than suspects and officers, there are visitors, too, as the police do not provide food to suspects. There are hundreds of people who could be exposed to any one person who is COVID-positive.

And there has been some COVID-19 testing (even a little last year) in police custody, resulting in several suspects going to Maula Prison’s quarantine center (typically the women’s section), including two children. Imprisonment of children is against the law, even if an expected result in these circumstances.

In addition to continual data collection and internal advocacy efforts, we have shared these findings with the Southern Africa Litigation Centre (SALC) and the Women Lawyers Association (WLA) for litigation on (COVID) arrests against children and advocacy against indiscriminate arrests by the police called sweeping exercises. These practices are systemic remnants of the colonial system and have been part of our work before the pandemic and will remain after. The challenge is to move the police closer to their 2020 better angels and away from this 2021 abhorrence.

 

 

 


The Parliament of Malawi should hire and fund the Independent Complaints Commission (ICC)


February 25, 2021 | posted by | 5sc

An edited version of this article was originally published in The Nation.

By Victor Mhango and Tyler Holmes

In his campaign, new President Lazarus Chakwera assured Malawians that his administration would follow the laws of Malawi for the benefit of the country. “We want to respect our rule of law so that we protect the rights of people in the country,” Chakwera reportedly said.

On the other side of the recent elections, President Mutharika said in his June State of the Nation address, “I want Malawi to be a country where everyone must be accountable. Nobody should be above the law and nobody should be above criticism. The essence of democracy is that everyone must be accountable to someone else.”

Though these leaders seem in agreement, too often Malawi’s systems of accountability have been created but not implemented.

For example, ten years ago, Section 128 of the Police Act established an Independent Complaints Commission (ICC). To actually run such a commission, funds and human resources need to be allocated, a public advertisement needs to be made for the Independent Compliants Commisioner (section 133(2)), and a public campaign needs to give Malawians the opportunity to present their grievances to the new agency.

Though on its face an ICC may seem redundant to the Malawi Human Rights Commission (MHRC), the MHRC’s mandate is much broader than police misconduct. Malawians deserve an independent agency that can conduct investigations into incidents like the Chisepo rape case (October 2018), the Buleya Lule case (February 2019) and the sexual assaults at Msundwe (October 2019), but also fill in the gaps between the big events. The ICC is needed to hold officers accountable and devote resources to see systemic changes implemented, rather than wait for the next front-page story.

An independent police complaints body is not only about holding police to account, but also about respecting victims’ rights. Over half of respondents to the government’s Justice and Democratic Accountability Survey in 2018 were unsatisfied with the fairness of the police when responding to crime. An ICC will allow victims to access justice through an impartial body that will respect their dignity.

Since the passage of the Police Act in 2010, voices as diverse as the Public Appointments Committee (PAC), the Human Rights Defenders Coalition (HRDC), and the Malawi Law Society (MLS) called for the ICC’s formation. Most recently, in their case against Government following the allegations of rape and sexual assault of 17 women and girls by the police at Msundwe, the Women Lawyer’s Association (WLA) sued Parliament for failing to ensure an ICC could verify a police investigation and support a just outcome.

Likely in response to Msundwe, the past government and PAC advertised for an ICC Commissioner earlier this year and named Christopher Tukula to the post on Friday. They are to be commended; so too is the new government, through Minister of Homeland Security Richard Chimwendo Banda and Inspector General George Kainja, for recent statements in favor of the commission. However, after so long, Malawians deserve a fully functional ICC.

Parliament must ensure, before it passes the 2020-2021 budget proposal, that there are adequate, dedicated funds for the Independent Complaints Commission. Adequate funding is required so staff can be hired, sufficient office space acquired and furnished, and the ICC can create public awareness and begin to receive complaints.

The National Assembly must also consider additional laws or regulations which take into consideration lessons learnt from the implementation of similar commissions in Hong Kong, India, Kenya, South Africa, and the United Kingdom.

Commissioners must be assured their independence: the confusion as recently as last year over who was responsible for the appointment of a commissioner shows that the process needs clarity and impartiality. Budgets for the ICC’s affairs must be protected. In Kenya, the Independent Policing Oversight Authority has seen diminished allotments even as police murders increase. This should be avoided at all costs.

The ICC should be given a broad mandate to collect complaints from the public, initiate and conduct its own investigations, and, if necessary, prosecute officers. It is important to learn from the limitations of similar independent bodies in Hong Kong and the UK which lack subpoena power and the ability to open their own investigations.

Finally, the ICC must be given a mandate to serve the public with accessible offices, a national hotline, and budgeting to get to hard-to-reach populations.

Malawi’s leaders are united in expressing the need for accountability in government. They should take advantage of this bipartisanship to guarantee that the institutions charged with ensuring such accountability are fully formed, adequately funded, and respected. Government and Parliament should work together to finally and fully create the Independent Complaints Commission without delay.

 

 


COVID-19 Highlights the Inability of the Malawian Criminal Justice System to Cater to the Needs of Persons with Mental Health Conditions


February 19, 2021 | posted by | 90sc

This post was written by Andrea Vizsolyi, IRLI’s Director of Public Prosecution’s Programme Lawyer from our Malawi Project.

Overview

Malawi’s prisons are some of the most overcrowded in the world, at an estimated 260% capacity. Congestion and poor hygiene measures have had a widespread detrimental effect on the prison population. At each stage of the Malawi justice system, accused persons’ rights may be affronted by issues such as incomplete investigations, a lack of legal representation available to those who cannot afford it, unsanitary and overcrowded conditions -which the High Court of Malawi has deemed akin to torture-  and long delays before trial.

Persons suffering from mental health conditions are even further disadvantaged in this system, with the prisons, police cells and personnel lacking the resources and knowledge to cater to their needs. Many accused persons with mental health conditions languish in overcrowded police cells with little attention paid to their specific needs. The already-distressing situation in these places of detention has been exacerbated by the COVID-19 pandemic: another in a long line of fast-spreading communicable diseases has entered the walls of prisons and police cells, and threatens those inside. Resources for those with mental health conditions in Malawi are severely limited (there is only one psychiatric hospital in the country), and criminal justice actors lack requisite sensitivity and/or knowledge in dealing with mental health conditions. This makes the frequent limbo of such accused persons dangerous to themselves and those surrounding them.

Arrest

People are often arrested in Malawi without investigation. Many are then subject to illegal detention while investigations are conducted. Torture is a commonly reported police tactic once someone has been arrested, which is generally used to extract a confession. The negative effects of torture go beyond physical injury, and can be exacerbated by the existence of a mental health condition.

Physical torture is not the only type of human rights violation that a detainee might face – fair trial rights such as their right to understand the charges against them and their right to silence, as well as their right to food, and other Constitutionally-protected rights are also impacted.

The Constitution and Criminal Procedure & Evidence Code provide that those arrested must be brought before the Court within 48 hours of their arrest for committal. This right is not complied with roughly 40 percent of the time. Once the case has been committed, many prisoners still wait years before their trial begins.

It is possible that as early as the arrest stage, an accused person with a mental health condition could be referred to the only psychiatric hospital in Malawi, located in Zomba (ZMH) for a mental health assessment. This referral would need to come from the police. The obstacle then becomes a lack of funds for the police to transport the accused person to ZMH and back to the police station. On the rare occasion that police take the matter into their own hands, the process of transportation to ZMH, the assessment, and getting funds to transport them back can take months.    

Receiving an assessment that the accused is not fit to stand trial does not necessarily signal the end of an accused person’s time in the criminal justice system. There have been several instances of accused persons being detained in police cells for months post-discharge from ZMH, with no progress on their case. Without the police flagging the case to prosecution services, these accused will remain undetected. They are often denied admission to the prisons, because the prisons do not want to cater to their mental health needs.

To detain accused persons whom have been declared fit to be reintegrated into the community, and who have been absolved of criminal responsibility, in unhygienic and non-socially distanced spaces is unacceptable. While release of these accused persons should always be prioritised- it is even more pressing in light of COVID-19.

Court appearances

A Magistrate or Judge may order a psychiatric assessment before trial has begun. This will require police, prosecution, or defence (in the unlikely event that the accused person has representation) to bring the matter forward.

As the assessment will determine whether the accused person can stand trial, it makes sense to present it as a preliminary issue. It is not uncommon for an assessment to be completed, and the accused person sent back to await their trial date, with no urgency placed on the fact that they have been determined not fit to stand trial. The accused person can remain without appearing again in Court for several months or years.

Due to uncertainty over whether police or prison resources should be used to ensure transportation, Court-ordered assessments are frequently not complied with – they are overlooked or ignored, with the result that those who are meant to be sent to ZMH never are. Without the assessment, they may not be listed for trial, so they remain in limbo in police or prison custody.

Remand

There are no mental health resources available to accused persons on remand. Though an assessment may mandate that they take certain medications, in practice, the prisons or police cells will likely not be able to get a proper supply. Nor do the prisons have any counselling programming to assist those in need.

It is very difficult to receive appropriate treatment while in custody, resulting in a deterioration of mental state, which may already be endangered by the inhumane conditions of detention.

Trial

In the course of the trial, if there is a recent assessment of unfit to stand trial, the Judge or Magistrate will likely accept it, and discharge the accused person. They may request a second assessment, depending how much time has passed since the first. If it has been over a year, the Court will want to be satisfied that the same is still true, and that the accused person can be safely reintegrated into their community. This can prolong the process by several more months.

Occasionally, the accused person does not get an assessment, but evidence presented at trial makes out that they do not have capacity to be held responsible. In this case, the accused person will hopefully be acquitted. This evidence may be presented by the Prosecution, if they are of the opinion that mental health could have been instrumental in the crime, or by defence. This can sometimes be the faster option, since assessment orders are not always complied with, and even if they are, the process can take several months.

Conviction

If the accused person is convicted, they face many of the same challenges as they do on remand. There are very limited resources within the prisons to assist them with their mental health issues, and they will be unlikely to get the proper medications they need, unless their family members can bring these to them from outside the prison.

Conclusion

The Covid-19 Pandemic has exposed deeply entrenched inequalities in our societies, and has highlighted the suffering of prisoners worldwide, in inhumane conditions. The impact on this pandemic on the mental health of prisoners with or without pre-existing mental health conditions cannot be overstated; it is time to take a stand and speak up for the most vulnerable.  

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Women in Malawi and the Impact of their Marital Status


January 26, 2021 | posted by | 90sc

This blogpost was written by Jessica O'Neill, chairperson of IRLI's Blackhall Trainee programme. It was first published in the Cambridge University Human Rights Law Society Blog, and draws upon research she conducted at IRLI on Malawi's compliance with its obligations under international human rights law. 

Summary:

· This blog introduces the legal position of women in Malawi and highlights the efforts made by Malawi towards improving access to justice for women.

· The blog explains developments to key statutes that have been made towards achieving this goal, such as the Citizenship Act, 1966.

· The post concludes by identifying problems which must be overcome to secure gender equality in legislation.

Introduction

In 1993, Malawi ratified the International Covenant on Civil and Political Rights (ICCPR) [1]. The ICCPR focuses on those issues which are central to the fulfilment of life including freedom of speech, food, and education, to name but a few. Inarguably, the equality of all persons is paramount to the enjoyment of any and all human rights. This notion is set out in Article 3 of the Covenant which reads ‘the State Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant’ [2].

Access to justice is deemed a basic tenet of the rule of law, yet women in Malawi have struggled historically to obtain this entitlement. In recent years, the State has made progressive attempts to offer legal protection by passing legislation to address the power imbalance and promote fairness. The Gender Equality Act, 2013 is one such display of commitment to the cause but women are still confronted with problems if the legislation is not effective in actually reaching the public. For statute to be successful, strong efforts are needed to educate the judiciary, the police and the people generally on the situation of women and the change in law [3]. Such advancement does not warrant complacency however, as existing laws which discriminate against women have yet to be amended or repealed.

In this piece, I explore the position of women in Malawi. In so doing, I consider the impact their marital status has on how they are treated in law and the steps that have been taken by the State to advance equal treatment of their rights.

National Legislative Measures

Firstly, Section 24(1)(b) of the Constitution of the Republic of Malawi provides that ‘on the dissolution of marriage, women have the right to a fair disposition of property that is held jointly with their husband.’ Therefore, the constitution prohibits gender discrimination. However, the statutory law which exists alongside this document is applied in a discriminatory manner. s17 of the Married Women Property Act 1882 is interpreted such that property is only held jointly, if a direct financial contribution is made to its acquisition, therefore failing to account for the indirect contributions made by women namely in the house [4]. In light of the fact women make more non-monetary contributions to the property than their male counterparts, this provision indirectly discriminates against women in Malawi. Therefore, this often results in women being denied their marital property rights. As consequence, the judiciary is therefore failing to defend the guarantees provided for in the Constitution in choosing to interpret legislation in a way which produces unjust results and much hardship for women.

Secondly, the Deceased Estates (Wills, Inheritance and Protection) Act of 2011 is a welcome addition to the law for Malawian women. The Act makes ‘property grabbing’ a criminal offence [5] and provides for the protection of the spouse’s and children’s share in the estate. It is regrettable that the Act does not expressly forbid widow cleansing and inheritance by means of harmful cultural practices as such provision would have acted as an additional safeguard to the female population [6]. However, this statute is a triumph for society. It is hoped that the State Party will improve and expand on the popularisation of this legislation by means of an awareness campaign to notify society of its achievement.

Thirdly, until recently, s 9 of the Citizenship Act 1966 in Malawi discriminated against women on the basis of marital status [7]. This provision effectively provided that when women acquired citizenship of another country other than Malawi through marriage, they ceased to be a citizen of Malawi within one year of the anniversary of the marriage. In the absence of a similar requirement for men marrying foreign women, this provision has long been seen as a barrier for Malawian women in their fight for equality [8]. Remarkably, this Act was amended in 2019 to allow for dual citizenship [9]. This development marks an important change for the women of Malawi; strengthening their rights as individuals, empowering their lives as human beings. In what can only be described as a watershed moment for gender equality, the introduction of dual citizenship has been hailed for its significance [10]. This legislative adjustment is a signal of hope and illustrative of the efforts needed to strengthen the legal protections afforded to women.

Conclusion

Malawi has shown dedication in its law-making capacity for social reform. Without affirmative action though, rights remain illusory. There are still prevailing legislative provisions which on interpretation by Malawian courts, discriminate against women unfairly. The existence of statute is always commendable, but we must make use of laws when they are at hand, call on the judiciary to apply them appropriately and inform citizens that they are available to them. Although State Parties should be praised for taking positive actions towards improving the status of women in society, indirect forms of discrimination are often more harmful than the obvious barriers to equality. With this in mind, State Parties must ensure that citizens are aware of developments in the law if we are to fully recognise the enjoyment of rights by women. Such measures are necessitated to guarantee equal protection for women and non-discrimination on the basis of their marital status.

References:

[1] International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, art. 3, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) (acceded Dec. 22, 1993) [hereinafter ICCPR].

[2] ibid, Article 3.

[3] Concluding Observations of the Committee on the International Covenant on Civil and Political Rights UN Doc. CCPR/C/MWI/CO/1/Add.1 19 August 2014 para 7.

[4] Committee on the Elimination of Discrimination Against Women, “Consideration of Reports Submitted by States Parties under Article 18 of the CEDAW, Combined Second, Third, Fourth and Fifth Periodic Report of States Parties: Malawi,” CEDAW/C/MWI/2-5, 28 June 2004, para. 16.11.1.

[5] Section 74 of the Act.

[6] Joint Submission by Centre for Human Rights and Rehabilitation (CHRR) & Centre for Civil and Political Rights, June 2014 https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/ Download.aspx?symbolno=INT%2fCCPR%2fCSS%2fMWI%2f17471&Lang=en

[7] Chapter 15:01 Laws of Malawi, section 9

[8] Dr Mwiza Jo Nkhata, Malawi Shadow Report on the International Covenant on Civil and Political Rights submitted by the International Gay and Lesbian Human Rights Commission (IGLHRC) 8;https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT %2fCCPR%2fCSS%2fMWI%2f17470&Lang=en.

[9] Malawi Citizenship (Amendment) Act No.11 of 2019; the Amendment repeals sections 8-11 of the Citizenship Act 1966 to permit dual citizenship.

[10] Austin Kakande, Malawi Adopts Dual Citizenship Concept, MBC (Dec. 13, 2018).